Nothing says “battle royal” quite like pitting several of California’s heavyweight environmental laws against one another in a “winner-take-all” litigation brawl. The Sixth District Court of Appeal recently presided over such a conflict in Save Panoche Valley v. San Benito County (6/25/13) 217 Cal.App.4th 503, a published decision in which it affirmed a judgment rejecting CEQA and Williamson Act-based challenges to the County’s EIR and findings approving a large solar power plant project on 4,885 acres of cattle grazing land in San Benito County.
The plaintiffs and appellants wereSavePanocheValley, Santa Clara Audubon Society and the Sierra Club. The project is a 420-megawatt photovoltaic solar power plant including 3 to 4 million solar arrays, a substation (including an operation and maintenance building and transmission interconnection towers), and onsite infrastructure including access roads and a buried electrical collection conduit. The developers named as real parties are Solargen Energy, Inc., Solargen Energy DE, PV2 Energy, LLC, PF2 Energy Holdings, LLC, and Nevo Energy, Inc. The project site lies two miles south of theFresnoCountyline and the Panoche Hills, and 15 miles west of I-5 and theSan JoaquinValley; in addition to providing forage for cattle grazing, the property lies within a conservation area important to endangered species such as theSan Joaquinkit fox, giant kangaroo rat, and blunt-nosed leopard lizard. As part of the project approval, the County cancelled Williamson Act contracts covering 6,953 acres, of which 4,563 acres were within the project site.
Appellants challenged County’s EIR and its Williamson Act and CEQA findings for the project. In affirming the trial court’s judgment and rejecting these challenges, the Court of Appeal reached numerous conclusions and holdings:
- While cancellation of the Williamson Act contracts for the solar project was not consistent with the purpose of the Williamson Act (i.e., agricultural land and resources preservation), and thus cancellation could not be justified on that basis, the County “unequivocally cancelled the contract on the basis that other public interests substantially outweighed the purpose of the Williamson Act[.]” If supported by substantial evidence, such a finding coupled with a finding “that there is no proximate noncontracted land which is both available and suitable for the [project’s proposed] use,” does support cancellation. Applying the substantial evidence test to County’s findings, the Court found “that there is substantial evidence to support the County’s determination that the public’s interest in renewable energy outweighed the purpose of the Williamson Act.” In holding that “California’s interest in renewable energy is well-established[,]” the Court invoked the Global Warming Solutions Act of 2006 (AB 32) and the Renewable Portfolio Standard (RPS) enacted by the Legislature requiring energy companies to make 33% of their total energy sales from renewable energy sources by the end of 2013.
- The Court found Solargen’s project “would help further the state’s progress toward achieving its goal for increased renewable energy and reduced greenhouse emissions, as the proposed project would generate renewable energy for the state while providing jobs to local residents” and further that “each additional renewable energy project helps the state advance toward meeting the requirements of the RPS.” Moreover, agriculture would continue to a limited degree despite the cancellation, and “[t]he cancellation would also only represent 1.2 percent of all contracted land within San Benito County, and 0.04 percent of all contracted land in the State of California itself.”
- The Court continued to apply a deferential standard of review in “find[ing] that the [County] Board’s determination that there was no suitable, proximate noncontracted land [was] supported by substantial evidence.” An alternative site (the “Westlands CREZ site”) suggested as appropriate by Appellants was located approximately 60 miles away and in 2 different counties (Fresno and Kings); it was also encumbered by numerous Williamson Act contracts, the majority of it was held by a private investment group (Westside Holdings), and Solargen had previously approached Westside Holdings about potential use of the site but failed to come to an arrangement. Nor was the Westlands CREZ a feasible alternative site for CEQA purposes, even if it were environmentally superior to the project, as there was evidence relied on by the County that it could not be developed within a reasonable time period or consonant with the project’s timing objectives; its location in other jurisdictions rendered it uncertain of approval; it would not further public policy goals as it would deprive the County of jobs and economic benefits; and it may have been legally infeasible due to private ownership and contractual control arrangements over it. While not automatically conclusive on the issue, the Court noted that whether an alternative site is located within or outside the boundaries of a County is a relevant factor on determining its feasibility.
- As the County’s Board noted in its approval resolution and statement of overriding considerations, “each reason it stated for the project’s infeasibility was independent of one another, and each was sufficient reason for denial of the alternative.” Since the Court found substantial evidence “support[ed] the Board’s determination that the Westlands CREZ alternative was infeasible due to its lack of proximity and due to its location in Kings and Fresno Counties, and because the land itself was privately owned by Westside Holdings and the Westlands Water District, [it] [did not] need [to]…reach the issue of whether or not substantial evidence supported the Board’s other findings of infeasibility.”
- In rejecting Appellant’s argument that the EIR failed to adequately complete biological surveys for the blunt-nosed leopard lizard, the Court observed: “Under CEQA, an agency is not required to conduct all possible tests or exhaust all research methodologies to evaluate impacts. Simply because an additional test may be helpful does not mean an agency must complete the test to comply with the requirements of CEQA. [Citation]. An agency may exercise its discretion and decline to undertake additional tests.” Further, the DFG’s concern expressed in a comment letter regarding possible “take” of the lizard “was not unequivocal,” and the FEIR’s requirement of pre-construction protocol surveys and a 22-acre buffer zone for each lizard found – a zone documented as the lizard’s largest home range by a biological study – provided substantial evidence that impacts would be sufficiently reduced.
- In rejecting Appellants’ claims of “deferred mitigation,” the Court recognized the rule that deferral “is permissible where the local entity commits itself to mitigation and lists the alternatives to be considered, analyzed and possibly incorporated in the mitigation plan” but that “an agency goes too far when it simply requires a project applicant to obtain a biological report and then comply with any recommendation that may be made in the report.” The Court noted this rule essentially prohibits “loose or open-ended performance criteria” which afford a potential means of avoiding mitigation during project implementation, and make it unreasonable to conclude the measures will achieve effective mitigation. The Court concluded “the mitigation measures adopted by the County were not loose or open-ended.” Rather, such measures–which included: preconstruction surveys and a set, 22-acre lizard buffer zone; preconstruction surveys and a 300-foot buffer around active breeding bird nests; and preconstruction surveys and relocation by a qualified biologist of found specimens including the San Joaquin coachwhip, coast horned lizard, short-nosed kangaroo rat, San Joaquin pocket mouse, and Tulare grasshopper mouse–were set forth with sufficient particularity and not improperly deferred.
- Appellants failed to meet their burden of demonstrating substantial evidence did not support the County’s findings regarding other mitigation measures for species of special concern; they could not do so by “simply rely[ing] upon conclusions made by the DFG [Department of Fish & Game] that are contrary to the Board’s conclusions.” For example: “Though the DFG may have expressed concerns that the mitigation lands were not sufficient, this evidence does not rebut the existence of substantial evidence supporting the adequacy of the proposed mitigation lands, such as the Silver Creek Ranch, as an appropriate area for conservation efforts.”
- Further: “[Appellants] may very well disagree with the evidence that the Board relied on in making its determination that the mitigation measures would not [sic] result in a decrease in impact, but such a disagreement does not necessarily mean that the Board violated CEQA, so long as sufficient evidence supported its findings.”
- In upholding the Board’s determination that mitigation of certain habitats and lands at a ratio (e.g., 3-to-1 for the kangaroo rat) was adequate, the Court followed the principle espoused in recent case law that “mitigation need not account for every square foot of impacted habitat to be adequate. What matters is that the unmitigated impact is no longer significant.” (Citing Banning Ranch Conservancy v. City of Newport Beach (2012) 211 Cal.App.4th 1209, 1233.)
- In upholding the EIR’s agricultural analysis, the Court held its proposed mitigation measures protecting 13,000 acres of land in and around the project site and creating agricultural conservation easements that would either cover 4,563 acres of rangeland or 285 acres of high quality cropland were adequate. In short, agricultural land impacts were sufficiently mitigated by creating conservation easements, and the County did not need to create new habitats, or additional agricultural lands to compensate for lands used by the project: “We are unaware of any case law that supports [Appellants’] position. The goal of mitigation measures is not to set out the impact of a project, but to reduce the impact to insignificant levels.”
- The Court noted that a mandatory long-term restoration obligation was a component of the EIR’s adequate agricultural mitigation relevant to the foregoing analysis, in that “Solargen would [also] be required to dismantle the project upon conclusion of its useful life [of 30 years plus possible renewals], which would include disassembling of any structures and restoration of the lands. Restoration would include revegetation, and returning the agricultural soils to its [sic] original condition.”
- In rejecting Appellants’ arguments that substantial evidence did not support the County’s determination that the solar project would further the state’s interest in renewable energy, the Court reasoned: “[T]hough the completion of the solar project would not, by itself, push the state to meet its threshold requirements of 20 percent renewable energy by 2010 and 33 percent renewable energy by 2020, every solar project developed helps California increase its overall amount of renewable energy. [Appellants] in part posit[ ] that there was information before the County that the proposed solar project need not be constructed in order for the state to meet its renewable energy goals. An expert, Bill Powers, who testified before the board that he was a professional engineer, expressed the opinion that there were enough renewable energy projects in the queue, such that even accounting for failures, the state would be able to reach its renewable energy goals of 33 percent by 2020. Nonetheless, this opinion does not negate the existence of substantial evidence to support the Board’s findings.”
As can be seen from the above, Save Panoche Valley provides a helpful analytical roadmap to resolving conflicts between the Williamson Act and large solar power projects on agricultural lands, as well as illustrating the application of CEQA’s requirements in this context.
Questions? Please contact Arthur F. Coon of Miller Starr Regalia. Miller Starr Regalia has had a well-established reputation as a leading real estate law firm for over forty-five years. For nearly all that time, the firm also has written Miller & Starr, California Real Estate 3d, a 12-volume treatise on California real estate law. “The Book” is the most widely used and judicially recognized real estate treatise in California and is cited by practicing attorneys and courts throughout the state. The firm has expertise in all real property matters, including full-service litigation and dispute resolution services, transactions, acquisitions, dispositions, leasing, construction, management, title insurance, environmental law, and redevelopment and land use. For more information, visit www.msrlegal.com.